13 Ga. App. 847 | Ga. Ct. App. | 1913
In this ease the statutory lien of a builder and materialman was foreclosed upon the real estate of the opposite party to a written building contract in which it was stipulated that the decision of all questions as to the completion of the contract, as well as the builder’s compliance with the specifications, should be submitted to engineers as agents of both the contracting parties. Since we are of the opinion that the nature of the plaintiff’s action could not be disregarded, nor a new contract be substituted for that entered into by the parties, and which was necessarily the foundation of the action sub judice, and that therefore the lower court should have disposed of the ■ case upon the defendant’s motion, it is unnecessary to refer to the contentions of the defendant as set forth in its answer, and we shall state only the case as made by the plaintiff in the petition, with the amendments
The R. L. Moss Manufacturing Company, a corporation, brought' suit in the city court of Athens, against the Southern Manufactur-' ing Company, to foreclose a builder’s lien for a balance alleged to-be due the plaintiff for building 25 operatives’ houses- for the' Southern Manufacturing Company, which the petition alleged were built under a written contract between the parties, according to' plans and specifications referred to in the contract. The petition alleged, that the plaintiff complied with the terms of its contract and built the houses as it had contracted to do; that as the work progressed the defendant paid the plaintiff sums aggregating $12,725, but failed and refused to pay the balance due on said written contract, and that the defendant was liable for an additional sum of $721.75 for extra material and work and insurance on three houses, as set forth in the declaration. It was further alleged that the plaintiff filed and recorded its contractor’s lien within three months after the completion of the contract, as required' by law. ‘
The written contract which was the basis of the suit was not attached to the petition, and the defendant demurred to the petition, as follows: To the second paragraph (which alleged the written contract for the building of the 25 .houses according to the plans and specifications which were a part of 'the said contract),upon the ground that the written contract and the plans and specifications were not set out, either by copy or in substance, an'd that the second paragraph is vague and uncertain by reason of the: fact that it does not disclose what are- the terms and conditions either of the contract or of the plans and specifications. ' For the same reasons the defendant demurred also to paragraphs 3, 4, .5,- and 6- of the petition. Pending 'a ruling upon the demurrer the plaintiff, by way of amendment, attached a copy of the original contract and of the plans and specifications, and offered another amendment, setting up that during the progress of the work the engineers in charge under the contract were frequently upon the ground where the work was in progress, and that no objection, verbal or in writing, was ever made by them to any of the material placed in said houses, or to any of the workmanship done on them, although the petitioners repeatedly requested said engineers to in
The defendant moved the court to disallow and strike the amendment, on the following grounds: “Because the terms of the contract which by amendment had been made a part of plaintiff’s petition, and was the foundation of the suit, showed on its face and provided in substance that the contractor should provide all materials and perform all work for the complete construction of the buildings referred to, as shown on the drawings and described in the specifications prepared by Miles & Bradt Company, the engineers; that it was understood and agreed by and between the. parties that the work included in this contract is to be done under the direction of said engineers, and that their decision as to the true construction and meaning of the drawings and specifications shall be final; that it was further provided in said agreement that ‘it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and material shall be $1,025 each for the double-room cottages, or $25,625 in the aggregate, subject to conditions and deductions as hereinbefore provided, and that such sum shall be paid by the owner to the contractor in current funds, and only upon certificates of the engineers as follows: . . And the balance of the purchase-price shall be paid when 'all the cottages are completed and accepted by the engineers. The final payment shall be made within ten days after the expiration of the work included in the contract, and all payments shall be due when certificates for the same are
The court refused to strike the amendment and the defendant filed exceptions pendente lite. The case then proceeded to trial, and the trial resulted in a verdict for the plaintiff for the sum of $5,644, with interest, and establishing the contractor’s lien in favor of the plaintiff for that amount. Thereupon the defendant made a motion for a new trial, upon various grounds, which was overruled. The writ of error challenges not only the judgment refusing a new trial, but also the correctness of the ruling upon the defendant’s demurrer to the petition and upon its motion to disallow and strike the amendment offered by the plaintiff.
In the view that we take of the case it will be unnecessary to discuss the 'merits of the 36 grounds of the amended motion for a new trial, and the various assignments of error specified therein, which cover 36 pages of the record. We approve both the reasoning and the result in a case where the Supreme Court of Michigan construed a practically identical stipulation in a similar building contract (Hanley v. Walker, 79 Mich. 607, 45 N. W. 57, 8 L. R. A. 207), and wherein Chief Justice Champlin held that the plaintiffs’ failure to obtain the certificate and complete the work to the satisfaction of the architects was a complete defense to the suit. In the Hanley case, as in this, payments were to be made as the work progressed, upon the architects’ certificates, and the balance due was to be paid on the completion of the job and its acceptance by the architects and the owner, upon.the certificate of the architects showing such performance and acceptance; and the plaintiffs brought suit to recover the balance claimed to be due on the contract, without procuring such certificates. The stipulation as to the certificates was held to be a condition precedent to payment under the agreement of the parties, and no recovery could be had by the plaintiffs unless the defendant had waived the condition. In ruling upon the point the learned Chief Justice says: “It is claimed by defendant’s counsel that the failure of plaintiffs to complete the work to the satisfaction of the architects, and procure their certificates, is a complete defense to this action. I think the point is well taken. . . When parties capable of contracting have deliberately entered into a
In Milner v. Georgia Railroad Co., 4 Ga. 385, Atlanta & Richmond Air-Line Railroad Co. v. Mangham, 49 Ga. 266, and Parsons v. Ambos, 121 Ga. 98, 102 (48 S. E. 696), all of which were direct equitable proceedings, it was held that where the decision of an umpire was a condition precedent to the right to maintain an action, the action might be maintained under certain circumstances before a decision was made, but could not be maintained after 'a decision had been made which denied the plaintiff’s right to recover. In the Parsons case, supra, the court says: “For example, in building contracts -it is manifest that there must be some one, other than a court or jury, to pass on the question as to whether there has been a compliance with the specifications as the building proceeds, or to determine whether the work shall be accepted or rejected after its completion. Hence there must' be. á lawful and
We conclude, therefore, that a stipulation in a building contract to the effect that the compensation of the builder shall be due and payable only on the certificate of a named engineer is a condition precedent, and that an allegation of compliance with this condition is essential to the maintenance of an action brought to recover the unpaid balance of the compensation provided for in the contract, and to enforce collection by foreclosure of the materialman’s lien. And though this stipulation may be waived (as any provision of any contract may be waived), still the failure or refusal of the umpire, chosen by the parties, to give a certificate does not in such a case entitle the builder to. sue upon the contract; and certainly if the engineer named in the contract as arbiter (and whose decision as to the completion of the contract is to be final) has given a certificate stating that the contract has not been completed or complied with, a recovery can not be had under the contract; and a suit upon a quantum meruit, to recover the valuq of the services and material furnished, would be the plaintiff’s appropriate remedy.
The following questions are involved in the ruling upon the demurrer and the motion made by the defendant to strike the second amendment to the petition: (1) Can a builder’s lien be foreclosed unless the contract has been complied with? (3) Is the provision in the contract here involved, by which payments are to be made only upon the certificates of the. engineers, and the stipulation making the decision of the engineers as to compliance with the specifications and as to the completion of the work final, an essential term of the contract? (3) Are the allegations of .the petition as amended sufficient to require the implication of a waiver
In our opinion, under the terms of the contract involved, it was not incumbent upon the defendant, during the progress of the work, to object from time to time to minor details in the construction, when unsatisfactory to it, or when it thought that the result sought to be achieved by the contract might be better reached by performance in a different manner. In practical operation such a- system of petty nagging might render intolerable the performance of a building contract, and, to avoid this, it was stipulated in the present instance that the engineers should from time to time supervise the work. Provision was made for partial payment upon the contract, in accordance with certificates issued by the engineers, and, to say the least of it, the engineers were plainly constituted the agents of both parties to the contract. The allegations of the amendment proposed by the plaintiff, when viewed in the light of the provisions of the contract upon this subject, fail to show a waiver of defects in construction or material dependent merely upon the fact, as alleged, that authorized ■ agents of the defendant frequently saw the houses during the process of construction. Nor do we think a waiver of the provision which left to the engineers the final decisions as to the completion of the buildings, and as to whether the houses' had been built in accordance with the specifications, can be held, as a matter of law, to have resulted from the mere proposal on the part of the defendant to arbitrate
The provision of the contract to the effect that only when the . certificates of the engineers for the same are issued will final payment be due, we think, of itself answers the question as to the materiality of this condition in the stipulations between the parties. Both parties are alike bound by this agreement, and it is a condition precedent which can not be destroyed or attacked, except upon some such ground as fraud, and in a direct proceeding for that purpose.
Considering that the action is brought to foreclose a statutory lien, and viewing in this light the petition after it was amended by setting out the contract in full, we are of the opinion that the defendant’s motion to strike the amendment offered by the plaintiff should have been sustained. Nothing is better settled than that lien laws are to be strictly construed, and that (as statutes upon this subject are in derogation of the common law) he who claims a lien must clearly establish his right thereto. We do not hold
In addition to the plaintiff’s failure to produce the engineers’ certificate, the petition discloses failure on.the part of the plaintiff to comply with other stipulations. In order for the plaintiff to recover it was necessary for the work to be completed. This is essential in any case where.it is sought to foreclose a contractor’s lien. By the terms of the contract the work was not complete until .the work was in perfect and undamaged state to the entire satisfaction of the owner. There is no allegation in the amendment which obviates this requirement. Furthermore, the contract provided that the work should be completed within four months, and the petition shows that it was not completed within that time, and the amendment offers no reason or explanation for the non-performance of this stipulation of the contract. The time when final payment should be due had not been reached, according to any allegation of the amendment, because “final payment shall be due when the certificates of the engineers for the same are issued;” and it is not alleged that the certificate for the final payment had been issued by the engineers, nor is any sufficient reason given why the certificate had not in fact been issued.
This is a brief summary of the reasons wherein, in our opinion, the petition was insufficient (after amendment of the petition by the addition of the contract) to authorize a recovery in the proceeding to foreclose a lien, and why it was not germane to such a proceeding. In order to foreclose a lien, the plaintiff must show, compliance, with his contract, or a novation of the. contract, or a waiver of. the contract, amounting to such an estoppel as • would, prevent the defendant from setting.up any of the stipulations of the contract by way of defense. “There can be no recovery unless the plaintiff has a complete cause .of action at the time the suit is filed”. Deas v. Sammons, 126 Ga. 431 (55 S. E. 170, 7 Ann. Cas, 1124). A plaintiff can not set up. a contractor’s lien and recover thereon where the time when the final payment, shall be due is stipulated in the contract, unless the time has arrived, the contract further ■ stipulating that final payment should be due. upon .th$ completion..of the 'work,.. And ,when it has, been agreed, .that the
For the reasons briefly stated in the headnotes, it is plain that the petition failed to set forth a cause of action; and since the amendment should have been stricken and the action dismissed, what occurred on the subsequent trial was nugatory.
Judgment reversed.